United States District Court, D. Massachusetts
BETHEL KELLER-BRITTLE, STEVEN DEBOLD, RICARDO JEAN, AND DANIEL MEDEIROS, on behalf of themselves and others similarly situated, Plaintiffs,
COLLECTO INC. d/b/a EOS, PAUL E. LEARY, and TOD DILLON, Defendants.
MEMORANDUM AND ORDER GRANTING PLAINTIFFS' MOTION
FOR PRELIMINARY COLLECTIVE CERTIFICATION OF OPT-IN
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
October 1, 2018, Plaintiffs Bethel Keller-Brittle, Steven
DeBold, Ricardo Jean, and Daniel Medeiros
(“Plaintiffs”) filed the operative complaint,
[ECF No. 8], claiming that Defendant Collecto Inc.
(“EOS”) violated provisions of the Fair Labor
Standards Act, 29 U.S.C. §§ 201 et seq.
(“FLSA”), by calculating overtime pay without
properly accounting for commissions earned by EOS's
employees in determining their regular rate of pay.
Plaintiffs assert one claim against EOS under the FLSA on
behalf of a putative, opt-in “FLSA Class” and
another claim against all Defendants for violations of the
Massachusetts Wage Act, see Mass. Gen. Laws ch. 149,
§ 148 (2009), on behalf of a putative opt-out
“Massachusetts Class.” [ECF No. 8 ¶¶
34-47]. This Order concerns only the FLSA Class.
October 22, 2018, Plaintiffs filed a motion for preliminary
collective certification pursuant to the FLSA, [ECF No. 9],
in which they seek preliminary certification of the FLSA
class pursuant to 29 U.S.C. § 216(b), an order requiring
EOS to provide Plaintiffs with the names, addresses, email
addresses, and telephone numbers of all members of the
putative class within 20 days, and approval of
Plaintiffs' proposed FLSA Notice [ECF No. 10-1] and
Consent Form [ECF No. 10-2]. Defendants oppose the motion.
[ECF No. 14]. For the reasons explained below,
Plaintiffs' motion is GRANTED IN PART with the
conditions and limitations set forth in this Order.
facts are taken from the complaint, the exhibits submitted
with Plaintiffs' motion to conditionally certify the
class, and the affidavit of Karen Player submitted with
EOS's opposition to preliminary certification. EOS is a
professional debt collection company that is headquartered in
Norwell, Massachusetts. [ECF No. 8 ¶¶ 13, 14; No.
14-1 ¶ 3]. EOS employs debt collectors and pays them an
hourly wage, overtime, and commissions based on the success
of their collection efforts. [ECF No. 8 ¶¶ 15, 16,
19]. According to Plaintiffs' Complaint, EOS pays
commissions pursuant to a company-wide policy that is
designed to encourage steady, rapid, and efficient work, and
pays its collectors overtime but without taking a
collector's commissions into account when calculating
their regular rate. [Id. ¶ 17, 19]. In addition
to a call center in Norwell, Massachusetts, EOS operates, or
has operated, call centers in Kentucky, Illinois, Texas,
California, New York, and Colorado. [ECF No. 14-1 ¶ 4].
EOS disputes the claim that it has a single company-wide
policy for commissions, and instead claims that management at
each call center and within each company division has wide
discretion in determining incentive compensation.
[Id. ¶ 6].
are three former EOS collectors who worked at EOS's
Norwell, Massachusetts location. They regularly received
commissions based on the amount of funds they collected, but
when they worked overtime, their overtime rate did not
fluctuate based on their commissions. [ECF Nos. 10-3, 10-4,
10-5]. Plaintiffs attest, based on their observations, that
there were at least 100 collectors employed by EOS in
Norwell, Massachusetts during their periods of employment.
[ECF Nos. 10-3, 10-4, 10-5].
FLSA requires employers to compensate non-exempt employees at
“not less than one and one-half times the regular rate
at which he [or she] is employed” for each hour worked
in excess of forty hours per work-week. 29 U.S.C.
§§ 207(a)(1). Employees may fall into one or more
of several exceptions to the minimum wage and maximum hour
requirements. See 29 U.S.C. § 213(a). For
non-exempt employees, the calculation of the regular rate is
governed by regulations. See 29 C.F.R. §
778.108 (“The ‘regular rate' of pay under the
Act cannot be left to a declaration by the parties as to what
is to be treated as the regular rate for an employee; it must
be drawn from what happens under the employment
contract”); 29 C.F.R. § 778.117
(“Commissions . . . are payments for hours worked and
must be included in the regular rate.”).
216(b) of the FLSA creates a private right of action for
employees to recover unpaid overtime and provides employees
with the option of bringing a collective action. In contrast
to the familiar requirements of Federal Rule of Civil
Procedure 23, Section 216's collection action provision
states that “[n]o employee shall be a party plaintiff
to any such action unless he gives his consent in writing to
become such a party and such consent is filed in the court in
which such action is brought.” “‘FLSA
collective actions require similarly situated employees to
affirmatively opt-in and be bound by any
judgment.'” Cunha v. Avis Budget Car
Rental, LLC, 221 F.Supp.3d 178, 181 (D. Mass. 2016)
(quoting Iriarte v. Cafe 71, Inc., No. 15 CIV. 3217
(CM), 2015 WL 8900875, at *2 (S.D.N.Y. Dec. 11, 2015)). It is
“well-established that the FLSA states clearly that
actions brought for violation of the Act cannot be brought as
Rule 23 class actions, and instead, must be brought as opt-in
collective actions pursuant to the procedures in 29 U.S.C.
§ 216.” Id. (punctuation and modification
plaintiff seeks to exercise her right to bring a collective
action under the FLSA, district courts have broad discretion
to facilitate the process of providing notice to other
potential collective action plaintiffs. See Hoffmann-La
Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989) (noting
district courts' discretion in the implementation of
Section 216 classes). Two methods have been used in this
district for determining whether plaintiffs are similarly
situated for preliminary certification of a Section 216
opt-in class: a two-step approach and the Rule 23 standard.
Trezvant v. Fid. Emp'r Servs. Corp., 434
F.Supp.2d 40, 42 (D. Mass. 2006) (citing Kane v. Gage
Merch. Servs., Inc., 138 F.Supp.2d 212, 214 (D. Mass.
2001); Dionne v. Ground Round, Inc., No. 93-11083,
1994 U.S. Dist. LEXIS 21641, at *6-7 (D. Mass. July 6,
1994)). “While the First Circuit has not addressed the
issue, most courts-including most district courts in this
circuit-follow [the] two-step approach to determine whether
to issue notice.” Cunha, 221 F.Supp.3d at 182
(citing Trezvant, 434 F.Supp.2d at 43).
the two-step approach “the court makes an initial
determination of whether the potential class should receive
notice of the pending action and then later, after discovery
is complete, the court makes a final ‘similarly
situated' determination.” Trezvant, 434
F.Supp.2d at 42. At the notice stage, the court usually
relies on the pleadings and any affidavits that have been
submitted. Kane, 138 F.Supp.2d at 214. The
determination is made based on a “fairly lenient
standard” that requires plaintiffs “to put forth
some evidence that the legal claims and factual
characteristics of the class in this case are similar.”
Trezvant, 434 F.Supp.2d at 43-44. “In other
words, the plaintiff must make ‘a modest factual
showing' that she and other employees, with similar but
not necessarily identical jobs, suffered from a common
unlawful policy or plan.” Prescott v. Prudential
Ins. Co., 729 F.Supp.2d 357, 364 (D. Me. 2010). Given
this lenient standard, a motion “typically results in
‘conditional certification' of a representative
class, ” though the scope of the certification may be
narrower than that requested. Hipp v. Liberty Nat'l
Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001)
(quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207,
1213-14 (5th Cir.1995)); see Prescott, 729 F.Supp.2d
at 369-70 (D. Me. 2010) (considering the job categorizations,
locations, and temporal scope of the collective action based
on the information available to the court). Once discovery is
complete, the defendant may file a motion for
decertification, and “the Court can decide whether to
decertify the class or to let the claimants proceed to trial
as a collective action.” Trezvant, 434
F.Supp.2d at 45. In determining the scope of a collective
action class at this second step, most courts focus on: (1)
the disparate factual and employment settings; (2) defenses
that may be individual to each plaintiff; and (3) fairness
and procedural considerations. Reeves v. Alliant
Techsystems, Inc., 77 F.Supp.2d 242, 247 (D.R.I. 1999).
for conditional certification are frequently brought so that
notice can be provided to as many prospective class members
as possible before the statute of limitations nullifies their
claims. An action for unpaid overtime compensation is barred
unless it is commences within two years after it accrues, or
three years for a “willful violation.” 29 U.S.C.
§ 255. Unlike Rule 23 actions in which “filing a
complaint tolls the statute of limitations for all alleged
class members, whether they know of the lawsuit or not,
” “parties alleged to be ‘similarly
situated' in a § 216(b) case must affirmatively opt
in to toll the limitations period.” Nash v. CVS
Caremark Corp., 683 F.Supp.2d 195, 200 (D.R.I. 2010)
(citing 29 U.S.C. § 256; Crown, Cork & Seal Co.
v. Parker, 462 U.S. 345, 350 (1983)). This may allow
defendants to “bleed value out of a large pool of
outstanding FLSA claims” if they successfully delay
notice and thereby limit the number of plaintiffs who become
aware of their potential claim before the limitations period
have not shown that all members of the putative FLSA class
suffered from a common unlawful policy and should receive
notice. Plaintiffs' attestations about the number of
class members and their knowledge of the commission payment
policy at issue are based solely on their experiences at
EOS's Norwell, Massachusetts location,  and they provide
no evidence from which the Court can reasonably infer that
EOS has a single company-wide policy for paying commissions.